Save Our Downtown and Albert T. Quick - the plaintiffs in a recent lawsuit against the City of Traverse City and development group Innovo over how building height is measured in the city - announced Friday they will appeal a recent Michigan Court of Appeals ruling favoring the city and Innovo to the Michigan Supreme Court.

The Michigan Court of Appeals last month reversed a ruling by Judge Thomas Power that determined all parts of a building must be under 60 feet or else go to a public vote under the city charter in Traverse City. The judges said Power "erred" in siding with an argument from Save Our Downtown that the charter amendment overruled the city's zoning ordinance, which measures height from the grade to the roof deck and excludes certain mechanical and architectural features (like elevator shafts and clock towers).

Save Our Downtown argued - and Power agreed - that the passing of Proposal 3 in 2016 changed the way building height was measured in the city, requiring all features to be under 60 feet. The Michigan Court of Appeals rejected that ruling, saying it is "undisputed that the amendment does not expressly address how to measure the height of a building." If Save Our Downtown wants to change the city's zoning ordinance regarding how building height is measured, the Michigan Court of Appeals said, it must follow the proper legal process in Michigan for amending zoning rules.

The Michigan Court of Appeals did side with Save Our Downtown in determining that even under the city's definition of building height, the Innovo project planned on Hall Street (pictured, rendering) was too tall by roughly two feet and needed to go to a public vote unless redesigned. Innovo's project appeared on the ballot this week, but was rejected by voters. The developers told The Ticker that if the ballot measure failed, they planned to shave a few feet off the building design and proceed with construction next spring on a building under 60 feet as defined by the restored city rules.

However, those plans must now wait until it can be determined whether the Michigan Supreme Court will hear an appeal from Save Our Downtown and Quick. According to a release Friday from the plaintiffs' attorney, Jay Zelenock, Save Our Downtown and Quick "plan to ask the (Michigan) Supreme Court to reverse that portion of the recent Court of Appeals ruling that could allow city staff and city officials to approve a building in excess of 60 feet in height without the consent of the voters, contrary to the 'plain language' of the city charter." The group will file an application for leave to appeal before the end of November, according to the release.

The release states that the plaintiffs believe the "recent Court of Appeals decision was correct in part, as it upheld Judge Power’s ruling that the Innovo project required approval of the voters before it could go forward. Unfortunately, the Court of Appeals did not agree with all of Judge Power’s ruling, and included language in its decision that could be read to return too much power to the city commission and the city staff. We believe that is clearly an error, and contrary to the intent of the voters. Judge Power’s decision was entirely correct and we expect the Michigan Supreme Court to agree."

According to Zelenock, this week's voter rejection of the Innovo proposal made clear "that the city’s small-town character is valued, and its residents do not want city officials to allow oversized projects to be built that would permanently change our skyline and city character."

In response to the announced appeal, Innovo Principal Brian Mullally provided the following statement to The Ticker: 

"The lack of workforce housing has been a roadblock to our community’s economy for years. The decision by Judge Power created uncertainty in the application of the city’s zoning code and ultimately property owners’ rights. Innovo, along with the city, were heartened that the Court of Appeals agreed that our analysis of the judge’s ruling was plainly wrong, and correctly applied the law to the facts of this case. However, it should be no surprise that Save Our Downtown seeks to further address this with the Michigan Supreme Court. Rather than coming up with solutions on how to provide affordable, impactful housing for nurses, police officers, and other working people, they are content to try to hold Traverse City back decades. Innovo looks forward to continuing the fight for Traverse City’s progress and ultimately ensuring the decision by the Court of Appeals is affirmed by our Michigan Supreme Court."

The Michigan Supreme Court is not obligated to hear the case. Each year, "the Supreme Court receives over 2,000 applications for leave to appeal from litigants primarily seeking review of decisions by the Michigan Court of Appeals," according to the court's website. "The Supreme Court's authority to hear cases is discretionary. The Court grants leave to those cases of greatest complexity and public import, where additional briefing and oral argument are essential to reaching a just outcome." If the Supreme Court declines to hear the case, the lower court's ruling stands.